According to the National Employment Law Project (NELP), some 70 million Americans - one in four adults - have criminal backgrounds. (http://www.nelp.org/page/-/SCLP/2014/NELP-Fair-Chance-Factsheet-0914.pdf?nocdn=1) Some are concerned that otherwise qualified candidates are being evaluated unfairly based on potentially outdated and unrelated convictions rather than on the person's ability to perform specific job duties. A resulting movement, commonly known as "ban the box," seeks to remove questions regarding criminal history from job applications that ask "Have you ever been convicted of a crime?" In states that have passed ban the box legislation, employers are generally prohibited from asking job applicants to indicate on initial job applications if they have a criminal record.
Today, there are fourteen states and the District of Columbia that have adopted some version of ban the box legislation - California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), District of Columbia (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), and Rhode Island (2013).
Federally, the U.S. Equal Employment Opportunity Commission (EEOC) arguably endorsed removing the conviction question from job applications as a best practice in its 2012 guidance advising that "an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended." (See, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Number 915.002 (04/25/2012)). The guidance states that although Title VII of the 1964 Civil Rights Act does not bar use of criminal background checks, employers may violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin, or another protected category, and employers cannot demonstrate "business necessity." (Id.) In addition, the United States Department of Labor issued a warning that federal contractors who exclude job applicants based on criminal records risk violating anti-discrimination laws. (See, Office of Federal Contract Compliance Programs, DIR 2013-02 (Jan. 29, 2013.))
While Ohio, Kentucky and Indiana have not explicitly adopted statewide ban the box statutes, various cities and counties have enacted such legislation. Below is a survey of the current status of ban the box legislation in Ohio, Kentucky and Indiana:
In the past few years, however, numerous cities across the state including Akron, Canton, Cincinnati, Cleveland, Dayton, Massillon and Youngstown as well as Cuyahoga, Hamilton and Summit Counties have passed local ordinances to ban the box. The City of Cleveland eliminated the question regarding prior convictions on job applications for municipal employee applications and civil service testing applications. Also, background checks can now only be performed on finalists for a position. (See City of Cleveland Office of the Mayor Press Release (Sept. 26, 2011).) Cuyahoga County as a whole followed suit by prohibiting inquiries about or consideration of criminal convictions of applicants for County employment positions until the applicant has been offered conditional employment. (See, Ordinance No. 02012-0005 (Aug. 28, 2012.))
Cincinnati also banned the box and only allows a background check for otherwise qualified applicants. Cincinnati also incorporates EEOC criteria when performing an individualized applicant assessment and provides an applicant with the right to appeal a denial of employment. Also, if a background check is performed, the employer is required to provide a copy of the background check report to the applicant. Ultimately, even if a job applicant has a criminal record, the Cincinnati Human Resources Department cannot simply choose to not hire that person based upon their record. Before making a decision, the City must consider (i) whether the past offense(s) directly relate to the job responsibilities; (ii) the person's age at the time of the crime; and (iii) any testimony or documentation demonstrating rehabilitation. (See, generally, The City of Cincinnati Motion for Fair Hiring, June 9, 2010.)
Canton also banned the box and now only allows background checks to be performed on otherwise qualified candidates. Unlike Cleveland and Cincinnati, however, this only applies to applications under the Canton Civil Service Commission. Under the new amendment, the Civil Service Commission may certify someone as eligible for a position regardless of a felony or misdemeanor conviction, as long as the conviction does not bear a direct and substantial relationship to the position. The Human Resources director determines this based upon a list of factors provided by the EEOC. (See, generally, Rule IV, Examinations, Section 15, Amendment.)
Statewide, Ohio law permits ex-convicts to apply for a Certificate of Qualification for Employment (CQE), which allows the applicant to present proof from a court that he or she has been rehabilitated and is suitable for employment. (See, generally, Ohio Senate Bill 337.)
To date, Louisville is the only city in Kentucky that has a ban the box law in effect. This ordinance bans the Louisville Metro Council, as well as contractors and vendors doing business with the city, from asking about an applicant's criminal background on the employment application. Louisville also only performs a background check for otherwise qualified applicants and incorporates EEOC criteria into individualized assessments of applicants. The ordinance explicitly provides that the city prefers to do business with vendors and contractors that have adopted policies consistent with those of the city, and that consideration of vendors' and contractors' criminal history policies is criteria used to determine which contractor/vendor to award a contract to. (See, generally, Ordinance No. 046, Series 2014.)
Indianapolis is the only city in Indiana that has banned the box. This law not only applies to the city of Indianapolis, but also to Marion County, as well as licensing and vendor activities in the county/city. Indianapolis only allows a background check to be performed after the first interview and city, county agencies and vendors are similarly prohibited from inquiring into a job applicant's criminal history until after the first interview. If there is no formal interview process, then the employer is prohibited altogether from inquiring into or obtaining information regarding criminal convictions. (See, generally, City-County General Ordinance No. 2, 2014.)
The ban the box movement has gained momentum nationwide and we expect to see a marked increase in the number of cities and states that adopt such legislation in the future. Large national retailers such as Target, Wal-Mart Stores Inc. and Bed Bath & Beyond no longer ask about an applicant's conviction record during the initial phase of the hiring process. More recently, on March 25, 2015, top White House officials reportedly met with Ban the Box activists seeking an executive order from President Obama making it illegal to ask potential employees if they have ever been to prison.
As a result of the growing ban the box movement and the plethora of individual city and county ordinances addressing such concerns, it is essential for employers to review their hiring practices, particularly if they request information regarding an applicant's criminal record on job applications. For more information on ban the box legislation or if you have any questions, please contact a member of our D&O and Employment Practices Group or our Retail & Hospitality Practice Group.